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Seven Tips to Help Clients Prepare for Mediation

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Prepare for Mediation

So you have the big mediation date planned.  You hope the mediator will be able to work whatever magic she has so you can move the case to settlement and put the case to bed.  You’ve prepared yourself.  You know the law.  You have your arguments ready.  You’ve done your study of the facts.  But you forgot something crucial.  You forgot to prepare the most important person to your case—the person who actually has decision making power—your client!

Clients who prepare for mediation simply do better.  Client preparation significantly increases the chances of reaching a settlement.  Preparation is an often overlooked component of successful dispute resolution.  Importantly, clients are happier when they can settle outside of court.  So, here are seven tips to prepare your client for mediation.

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

#1: Make sure the client understands the mediation process.

To prepare your client for mediation, it’s important for them to be clear on what is expected of them in mediation, and what the role of the mediator will be.  Mediation is not court. It is not counseling or therapy.  It’s a negotiation facilitated by a third-party neutral.

The mediator is there to facilitate and to help people bridge their gaps from a neutral perspective. The mediator doesn’t give legal advice and doesn’t get a tie-breaking vote if the clients disagree.

All decisions are up to the parties to mutually agree.  Mediation does not require people to get along. A good mediator will facilitate the conversation and bring balance — even in cases where one party may be a better negotiator than the other.

#2: Educate your client on the relevant law.

It really helps if your client is prepared and armed with information.  This reduces the amount of time the mediator has to spend educating the client.  If they know what their rights are before they come, then they are more able to consider proposals for settlement.

Also, assure them no one will be expected to sign binding agreements without the advice of counsel. This goes a long way toward calming any fears of being “tricked” into an agreement.

#3: Prepare your client to manage emotional responses.

People come to their conflicts with a myriad of emotions.  Most of us, whether we admit are not, make most of our decisions through the lens of our emotions.  This is fine unless the emotions become so intense that we lose our ability to think rationally.  In divorce cases in particular, emotions affect almost all of the clients decisions.  Sometimes parties themselves in the difficult state of fight or flight and are unable to think clearly.  If left unmanaged, a negative emotion can make reaching accord much harder.

Consider mental health professionals to coach the client.

If you are like most attorneys, you have not been trained in psychology.  It’s good practice to know where your limitations are.  Why not involve a mental health professional to act as a divorce coach to prepare clients to prepare themselves emotionally for what might be a challenging meeting.

Help the client come up with strategies to stay calm to help with rational decision making.

Coach your clients on the importance of managing one’s own emotional responses.  It’s good to normalize coping tools such as taking a break or breathing.  If you are going to be there with your client during the mediation, come up with a signal, such as a keyword or a hand gesture, to indicate when a person is loosing it.  That way, when the signal is given, you can take your client outside to calm down.

A good mental health professional can even help the client come up with mindfulness tools to keep them grounded.  You want your client to bring his or her best self so that she or he can negotiate rationally.

#4: Make sure your client realistically understands their best alternative to alternative to a negotiated agreement (BATNA).

It’s common for a client to have unrealistic expectations about how good their case is.  They may believe that their case is a slam dunk and that all they need to do is get in front of a judge so that can explain their case.  Naturally, the judge will see it their way.

But we all know that such is not always the case.  In Roger Fisher and William Ury’s seminal work, Getting to Yes: Negotiating Without Giving In, Fisher and Ury coined the phrase of the “Best Alternative to a Negotiated Agreement”  (BATNA for short). This is basically your client’s best case scenario if they end up in front of a judge.   A strong BATNA can empower decision making.

A client with an overoptimistic BATNA will make choices that put them at risk.  If they have a more realistic BATNA, it’s an important tool in negotiating a mediated agreement.  If a proposal is superior to your BATNA, then should take it.  Having a proposal that is worse than your BATNA will result in a person being less like to accept a proposal.

Be careful, however, that you as the professional also have a realistic BATNA.  I can’t tell you how often I have seen attorneys poorly advise their client because of an unrealistic BATNA.  They then go to court and sometimes get an unpleasant surprise.  So make sure you are thinking things all the way through yourself!

#5: Make sure your client realistically understands their worst alternative to a negotiated agreement (WATNA).

Fisher and Ury also teach us the phrase “Worst Alternative to a Negotiated Agreement” (WATNA for short).  Basically, the WATNA is the worst case scenario if your client ends up in court.  Sometimes a proposal is worth taking simply because it could be so much worse.  It’s a strategy of minimizing risk.

If your client is unrealistic about the worst case scenario and therefore has an uninformed WATNA, that can be very dangerous.  Your client may walk away from a deal that minimizes risk because he or she doesn’t understand how bad it can be.  Just like with the BATNA, make sure you are being realistic too.

I’ve seen a lot of attorneys advise their client not to accept a reasonable proposal only to go to court and do worse.  Client’s don’t love it when that happens- especially if they acted on your advice.  So, make sure you’ve got the BATNA right and be ready to move your BATNA or your WATNA once you get into the negotiation and learn new information.

#6: Get the client away from a fixation on things being “fair.”

Fair is the “F” word. Instead, focus on making a “good business decision.”

In negotiations, “fair” is largely meaningless.  What one person may define as fair may be worlds apart from what the other party defines as fair.  I find it best not to got there.  Fair is the “F” word in my conference room.

Rather, I coach my clients to leave “fair” behind and stretch for a good business decision.  If everybody is giving something up and a little disappointed, that means we are compromising… and that is GOOD.

Help your clients look for an agreement they can live with rather than an agreement that will conform to a mythical understanding of fairness.  Sometimes, the deal won’t ever be perfect.  But if you want your client to stay out of court, it may just have to be good enough.

See also: Why “Fair” is the F-Word in Divorce Negotiations

#7: Teach your client how to make realistic proposals.

He or she isn’t negotiating to get a bargain on a used car. It is a waste of time to offer terms pushing the extremes with the sole intention of pushing the other party to come closer a desired result. It is the road to frustration, mediation breakdowns, and a date in court in front of a judge.

See also: Tips on Making and Receiving Proposals

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

Ways to Avoid Mediation Mistakes Too Many Lawyers Make

Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

Neutral Private Settlement Conference

California Holds Facebook Rants In Custody Case Are ‘Free Speech’

facebook angerIt has been a long standing belief in family law: parents should not subject their kids to rants about a custody battle.

Judges have long constrained speech that would unnecessarily expose kids to the nastiness and details of the battle over who gets custody of the children between their  parents.

However, a new case issued by California Court of Appeal (Second Appellate District) seems to set a new boundary around what kind of speech the court can constrain.  It is particularly interesting given the new era of social media communication we live with today.

The case is Molinaro v. Molinaro 19 DJDAR 2709 (2-26-19) (DCA 2), certified for publication on March 28, 2019.

In this matter, a rather nasty Mr. Molinaro earned the privilege of receiving a domestic violence restraining order under the Domestic Violence Prevention Act (DVPA).  The list of his hideous behavior included blocking his wife’s car in the driveway, threatening to throw a chair through the window if she didn’t unlock the door, and threatening to euthanize the dog.  A real charmer.

Mr. Molinaro also endeared himself to the court by arguing with the judge, calling him ‘insane.’  He was so hostile at court, bailiffs had to repeatedly admonish him to calm down.

Mr. Molinaro posting rants about his ‘unfair’ treatment in the case on his Facebook page. Among other things, he posted “about the divorce, about everything that’s happening.” His soon to be ex-wife testified he “posted to Facebook that [she] stole $250,000 from [their] home equity line, that [she] used it all and ran away with it.”  She testified, “He says that I am crazy and having hallucinations.”

Court orders parties not to post on Facebook about their case

To protect the children from being exposed to their father’s Facebook rants about the case, the trial court ordered “Neither party is to discuss any aspect of the case with the minor children until further order of the court-including Facebook posting [about the] subject case matter.”

Granting the wife’s application for a restraining order, the court ordered her then-husband not “to post anything on Facebook … in regards to this action … ”  In an attachment to the restraining order, the court ordered the parties “not to post anything about the case on Facebook” and “not to discuss the case with the children.”

Mr. Molinaro appealed the trial court’s order.

Facebook posts considered to be “free speech” per the court ruling

The appellate court upheld all of the provisions of the restraining order, except for the restraint on Facebook posting, finding it to be an overbroad and impermissible infringement on free speech.

The court held:

“Although we have found the evidence sufficient to support the court’s issuance of a domestic violence restraining order, we conclude the part of the order prohibiting Michael from posting ‘anything about the case on Facebook’ is overbroad and impermissibly infringes upon his constitutionally protected right of free speech.”

The court further argued:

“’It is certainly in the best interests of the children of divorce that adults in their lives act in a mature and courteous manner’ [citation]; however, where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests.  The part of the restraining order prohibiting Michael from posting about the case on Facebook does not meet this test.  We conclude it is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order.”

So, to sum it up, Mr. Molinaro is still a jerk.  But he can talk about it on Facebook.

 

 

 

 

Eight San Diego Mandatory Settlement Conference Prep Tips

I have learned what works for attorneys preparing for the MSC, and what doesn't. You can benefit from my experience with these eight tips.

I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

I have volunteered as a mandatory settlement conference (MSC) temporary judge in San Diego Superior Court for many years. I’ve also privately negotiated hundreds of settlement conferences. I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

While I’m sure these ideas will work in any court-facilitated settlement program, these are written specifically with the San Diego family law practitioner in mind.

Take the meeting seriously.

Getting scheduled on the mandatory settlement conference calendar in San Diego County can take months. Settlement judges are volunteers and there aren’t enough to go around. A lot goes into assigning and calendaring your case.

Your client expects you to be ready for negotiation. He or she is paying you to prepare. You are doing your client a disservice and insulting the settlement judge if you are ill-prepared by wasting their time and money.

Many times in my role as a volunteer settlement judge, attorneys aren’t taking the meeting seriously. This is a lost opportunity for clients. Help your client find closure without the expense and trauma of litigation. If you still have to proceed to trial, perhaps you can at least solve some issues — the difference between a three-hour set and a three-day trial on the wheel.

Prepare a well-written brief.

When volunteering as a settlement judge, it can be disheartening to receive a flimsy ill-prepared brief full of typos, incorrect names, and out of date citations. It is simply unprofessional and could be malpractice. Your MSC brief needs ALL of the information you would take to trial. It’s poor form to make arguments or claims in the law unsupported by the evidence in your brief.

If documents are required to make your client’s Epstein claim or reimbursement request, you’d better have them attached to your written statement. If you don’t, an experienced attorney may successfully get it excluded when you bring it to trial.

Remember these key pieces of guidance from the MANDATORY SETTLEMENT CONFERENCE GENERAL INFORMATION sheet (form SDSC D-047 – Emphasis Added):

“All parties must be prepared to seriously discuss how they would be willing to settle their case.”

“The brief must include all the information required for a trial brief as set forth in the California Rules of Court, rule 5.394.”

San Diego rules encourage the use of the Mandatory Settlement Conference Brief-Long Cause Hearing Brief-Trial Brief (form SDSC D-241). Follow the form like a checklist to make sure you get the information into your brief you need or construct your brief of a pleading following the same format.

Meet and confer meaningfully before the MSC.

Don’t waste time – time is money in legal matters!

In San Diego, parties are not required to meet and confer before the MSC. But why wouldn’t you try? Maybe you could settle the case before wasting anyone’s time or money. It never hurts to talk about how far apart you might be. You may find more common ground than you thought.

If you can settle without an MSC, do it.

I participated in a conference not long ago where it was clear a simple phone call could have settled everything.  There was no need to put the parties through the expense of an MSC. The briefs showed the attorneys failed to meet and confer. The parties paid a lot of money for their attorneys to prepare and participate when a brief phone call could have done the trick. I scheduled an entire day of billable time to review the briefs and to participate as a settlement judge. Instead of billing their clients to prepare an MSC brief, they could have just prepared the MSA.  Now they are billing their clients for both.

Don’t schedule the MSC if you don’t intend to settle.

At several settlement conferences, it was clear there was never any serious intention to settle anything. The attorneys were punching their card so they could get a trial date. If it is clear a case can’t settle in a mandatory settlement conference, the judge may be willing to skip the MSC and set the case for trial immediately. The court doesn’t want to waste valuable MSC time either.

Be polite and professional.

You shouldn’t need a referee during a settlement conference! Be polite and professional.

Years ago, I was disappointed by the unprofessional behavior of two seasoned attorneys in a conference They refused to speak to each other or to sit at the same table. I even had the two parties come to me together and confide with a longing look on their faces how they didn’t understand why their attorneys refused to settle.  They asked if I could help. I was astonished, but I made the attempt. The attorneys struggled but finally managed to put their clients first and we concluded the case.

How embarrassing. No wonder people hate lawyers.  Do us all a favor.  Check the bad behavior, the grandstanding, and the aggression at the door, and help your client settle.

Prepare your clients for compromise.

Meriam-Webster defines compromise as “to come to agreement by mutual concession.” For there to be a compromise, both parties need to give a little.

Going to court has inherent risks. You may think your client has the mythical “slam-dunk” case. There is no such thing. The case may not go exactly as you thought.  In family law, judges have a lot of latitude and discretion. Help your client understand that the risk of going to trial, even if you think the law supports his or her position.

When two intelligent and experienced attorneys come up with diametrically opposed arguments, one of them has to be wrong! The value of settling includes reduced stress and legal fees, and acts as an insurance policy to minimize risk. Preparing your clients by getting them away from notions of “fair” and “justice” and towards the merits of a good business decision can make all the difference when you get to the settlement conference.

Read also “Why ‘Fair’ is the F-word in Divorce Negotiations

Consider hiring a private settlement conference judge.

You can stipulate to a private settlement conference. Judges are happy to clear up space on the MSC calendar. Your client will enjoy some real benefits:

  • You can select your judge and know he or she is experienced and a good fit for the case.
  • You can make sure your settlement conference is facilitated by someone trained in dispute resolution.
  • Meeting at a mediator’s office for a settlement conference is less formal and less stressful than court.
  • You are not constrained by the three hour time block for an MSC in court. You can take time to come up with a thoughtfully considered agreement.

Read more about private settlement conferences here.

For our STIPULATION AND ORDER FOR PRIVATE SETTLEMENT CONFERENCE (template), click here.

Read also Early Intervention: Why mediation early in a family law case can save a fortune in fees and stress .

 

New Case – Watch out if asking question in a deposition about a custody evaluation

New Appellate Case: Anke v. Yeager

There is a new appellate which came down from the Second Appellate District of the California Court of Appeal on February 4, 2019.  The case is Anka v. Yeager and can be found here https://law.justia.com/cases/california/court-of-appeal/2019/b281760.html.

You know it’s going to go badly for the attorney in the case when you read this in the opening paragraphs quoting the oath of admission required to practice law described in California Rules of Court, rule 9.7:

“These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands. Unfortunately, that did not happen here.”  [Emphasis added.]

Yikes!

Sanctions for revealing the contents of a custody evaluation in deposition questions

In Anka v. Yeager, an attorney asked a question during a deposition as part of a child custody dispute about the contents of a custody evaluation.  The displeased trial court ordered $50,000 in sanctions against the attorney and party under Family Code sections 3025.5 and 3111.  The trial court found that the attorney’s asking questions about the custody evaluation in the presence of the court reporter and videographer at the deposition constituted an unjustified, malicious and reckless disclosure of the contents of the custody evaluation.

When the sanctioned attorney appealed.  She argued that the court reporter and videographer were “officers of the court” and were, therefore, exempt under 3025.5.  However, the appellate court held the court reporter and videographer were not employees of the court and were therefore not exempt.  The trial court did not abuse its discretion by imposing the sanctions on the attorney.  The attorney by asking deposition questions referencing the custody evaluation disclosed highly personal information about the child and family.  Moreover, disclosure in the form of questions in the presence of a court reporter was malicious and reckless.  The court affirmed the sanction of $50,000 against the attorney but reversed the sanction against the attorney’s client.

Be careful about asking questions in a deposition about a custody evaluation!

So, what is the lesson here? In a custody cases, do not ask questions about the custody evaluation in a deposition without court clearance.  If you screw this up, you may be paying a lot of money in sanctions and could even face discipline.

Big Change Coming in California Mediation Law in 2019 You Need to Know About

New Form Required by California Evidence Code § 1129

Top Five Principles for Successful Family Law Conflict Managers

In my years as a consensual dispute resolution professional, I have gotten to know a lot of professionals who try to manage conflict in divorce and family law situations. Some are very successful… and others not so much. I have compiled a list of my top five principles for successful family law conflict managers.

Mediating manager ponders about new business ideas. A light bulb as a concept of new ideas.

1. PATIENCE

This is not a race. Parties involved in a divorce are in crisis both emotionally and often financially. Don’t expect them to just reach a compromise in five minutes. The temptation is to try to “cut to the chase.” After all, we probably have an idea of where the settlement is long before the parties do because of our experience. But the parties need to “own” the agreement and they can’t if we just decide it for them and then try to force it on them.

Our job is NOT to twist arms. Our job in successful dispute resolution is to help the parties find solutions. In my experience, arm-twisting rarely results in a lasting settlement. It does, however, leave a terrible taste in the mouth of the person whose arm you just twisted. If people feel pressured or forced, we may reach a settlement, but it is unlikely we will have been able to help the parties reach a transformative outcome. Worst of all, they will resent us.

Rather, we should let the case proceed organically. We will guide, inspire and motivate– but never, ever force.

2. HUMILITY

Newsflash! It’s the parties’ case- not yours. Your job is to help guide people to a respectful outcome. You are not the finder of solutions or the sage of wisdom. Your job is to shine a light on problems and help the parties find their own solutions.

I have seen mediators brandish their stats as a weapon in mediation. For example, parties may be stuck at impasse and the mediator says, “I have a 98% settlement rate and you are ruining my statistics!” Your dispute resolution statistics, as far as the parties are concerned, are completely irrelevant to their problems. Sure, you try and find solutions, but the moment you invest yourself personally invested in the outcome as a matter of pride, you are doing your parties a huge disservice.

In my experience, most of the best ideas come from the parties not me. While I sometimes see myself as the “brainstormer-in-chief” trying to provide as many ideas as possible that the parties may not yet have thought of, I never lose site of the reality that the case belongs to the parties. My most important job in brainstorming, however, is not to be the one with the great idea. Rather, I strive to create an environment were the parties can find the solutions on their own. I am the facilitator. I am not the decider. My personal pride is not important.

3. EMPATHY

Perhaps the most important skill a mediator can learn is the ability to listen. I am not talking about the superficial surface listening. I mean deep, empathic listening.

To help parties settle, you have to really understand the conflict. This requires more than just listening to words. You need pay attention to body language and non-verbal cues. Prepare yourself to dig deep to find out what really motivates a party and what his or her interests truly are. Yes, she may be telling you that it is about the house or the best interests of the kids. But maybe down deep, she is really just afraid or insecure about her future. In such a situation, no financial settlement can satisfy the party who is afraid until the fear is acknowledged and addressed. This may take some digging to find, but until you do, you won’t help the parties reach a lasting settlement.

I find that I have to make sure I listen with more than just my ears. I also listen with my eyes, my heart and my soul.

Good dispute resolution requires your humanity.  Remember, this isn’t just a legal process; it’s a human experience. Until we can get into the world our clients are experiencing, we are limited in what we can help them unlock for themselves.

4. FLEXIBILITY

Because I work with people, I have learned to be ready and open for the unexpected. People don’t fit into compartments. My dispute resolution process, therefore, needs to have flexibility built in. A good mediator or dispute resolver can pivot quickly. Rigidity is the enemy of success when people are involved.

My mantra is “People before process.” While we may be very proud of our protocols and systems, the moment we allow them to drown out the needs of the clients, we miss the whole point of our service—to guide and help PEOPLE. We will keep our processes and protocols, but won’t be afraid to modify when the needs of the parties dictate a change.

5. PRINCIPLED BOUNDARIES

While it is important to be empathic and flexible, it is still important to have principles and boundaries, which we don’t compromise. For instance, I don’t ever let a party compromise my neutrality. I also insist on clarity surrounding how a party can communicate with me outside of the dispute resolution process. I guard my weekends and off hours, which are reserved for my own family. These and other principles and boundaries will not only preserve my own sanity, but they also communicate to the client that this is a business transaction and that there is a professional process that is deserving of respect.

While I am all about compassion and kindness, I am not a family member or a friend. I am a professional with a job to do. I do that job best when there are boundaries. Whenever I have allowed a boundary to be compromised, I regret it because the case almost always will go south.

I have found these principles to be crucial to my own practice. Perhaps you have other principles you would like to share. Let me know what works for you!

Read also:

Dolphin Lawyering: Why I can be an advocate without being a shark

We don’t get along very well. How can we possibly mediate our divorce?

Why “Fair” is the F-Word in Divorce Negotiations